876 F.

2d 89
14 Fed.R.Serv.3d 557, RICO Bus.Disp.Guide 7250,
16 Media L. Rep. 2016

Maurice F. McCARTHY, Jr., M.D., Nancy McCarthy, his wife,

et
al., Plaintiffs-Appellees,
v.
BARNETT BANK OF POLK COUNTY, a Florida Bank,
Barnett Banks,
Inc., a Florida corporation, Defendants-Appellees,
and
The Lakeland Ledger Publishing Corp., Movant-Appellant.
No. 88-3615
Non-Argument Calendar.

United States Court of Appeals,

Eleventh Circuit.
June 27, 1989.

Deborah R. Linfield, New York City, for movant-appellant.

Peter E. Homer, Karen H. Curtis, Miami, Fla., Robert J. Winicki,
Jacksonville, Fla., Robert E. Puterbaugh, Lakeland, Fla., Karl V. Hart,
Orlando, Fla., John W. Campbell, Tampa, Fla., for appellees.
Appeal from the United States District Court for the Middle District of
Florida.
Before HILL, FAY and CLARK, Circuit Judges.
CLARK, Circuit Judge:

This appeal is from the denial of the Lakeland Ledger Publishing Corporation's
("Lakeland Ledger") motion to intervene and oppose the institution of
protective order in a civil suit. The district court denied the motion and we

AFFIRM.
I.
2

This appeal grew out of a suit filed in March 1988 by over 130 investors in SH
Oil & Gas Exploration ("SH Oil") against Barnett Bank of Polk County and
others for violations of federal securities laws and RICO. As part of its
"sophisticated investor" defense, Barnett Bank has made the financial condition
of each plaintiff an issue in the case. During depositions, Barnett has inquired
into aspects of plaintiffs' financial transactions and business affairs wholly
unrelated to SH Oil and Barnett. Additionally, both sides have requested
discovery of documents dealing with confidential financial matters such as the
individual tax returns and financial statements of the plaintiffs and the loan
policies and manuals of Barnett Bank.

Discovery in this case has been acrimonious. Plaintiffs therefore filed on June
14, 1988, an emergency motion for protective order to prevent dissemination of
confidential commercial or financial information. On June 22, 1988, U.S.
Magistrate Thomas Wilson granted the emergency motion on a provisional
basis and granted Barnett until June 28 to file a memorandum of law in
opposition. After Barnett filed the memorandum, an emergency motion for
protective order was filed on June 29, 1988 on behalf of non-parties Mason
Wines and his professional corporation. This motion was similarly granted on a
provisional basis.

On July 1, 1988, the Lakeland Ledger wrote a letter to Magistrate Wilson

objecting to the protective order. On July 12, 1988, the Ledger filed a "Motion
to Intervene and in Opposition to Plaintiff' Emergency Motion for a Protective
Order" with the district court. Barnett filed a response before the Magistrate
which raised the same concerns as raised by the Ledger. Prior to any response
to appellant's papers by the plaintiffs, the district court entered an order
denying the Ledger's motion on July 15, 1988. On July 22, 1988, after
consideration of Barnett's opposing memoranda, the Magistrate made the
protective order final with slight modification.1 The appellant appeals from the
district court's order dated July 15, 1988. We have jurisdiction under the
"collateral order" doctrine of Cohen v. Beneficial Industrial Loan Corp., 337
U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). In re Alexander Grant & Co.
Litigation, 820 F.2d 352 (11th Cir.1987); Newman v. Graddick, 696 F.2d 796
(11th Cir.1983).

II.

The protective order in this case was based on standards suggested in the
Manual for Complex Litigation, Second, prepared by the Federal Judicial
Center. It prevents the parties from using any confidential information obtained
during discovery except as part of the litigation. The final order, however, does
not affect the dissemination of information gathered by a party through sources
other than discovery.2 More specifically, the order allows the producing party
to designate a document confidential unless the other party objects. At that
point, the party asserting confidentiality is required to apply within fifteen days
to the court for a ruling or concede the objection. The order also states that an
individual cannot decline to answer a question at a deposition on the grounds of
confidentiality. Instead, all depositions are considered confidential for fifteen
days by which time the deponent is required to classify the portions of the
deposition that are confidential as such.

The Lakeland Ledger argues that the protective order violates the "media's
protected right to gather news." The caselaw reveals otherwise. This court has
recently upheld a similar protective order in In re Alexander Grant & Co.
Litigation, 820 F.2d 352 (11th Cir.1987). This court explained that an
individual has no common law right to discovery material because those
materials are not judicial records or public documents. Id. at 355. Furthermore,
although individuals have a First Amendment right to access to discovery
material, the right is limited by Rule 26(c) of the Federal Rules of Civil
Procedure. Id. (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33, 104
S.Ct. 2199, 81 L.Ed.2d 17 (1984)). Rule 26(c)3 allows the issuance of a
protective order if "good cause" is shown. In addition to requiring good cause,
this circuit has also required the district court to balance the interests of those
requesting the order. Farnsworth v. Procter & Gamble, 758 F.2d 1545 (11th
Cir.1985) (cited in In re Alexander Grant Litigation, 820 F.2d at 356). A
"district court must articulate its reasons for granting a protective order
sufficient for appellate review." In re Alexander Grant Litigation, 820 F.2d at
355. We review the district court's determination under an abuse of discretion
standard. Id. at 357.

The appellant's brief argues only that the district court erroneously denied the
appellant the right to intervene. The appellant argues that the motion to
intervene should have been granted and the appellants should have been heard
on the question of whether there was good cause for the protective order. Only
in its reply brief does the appellant briefly address the merits of the order. We
believe the appellant misconstrues the district court order. Although the order
never explicitly grants the defendant's motion to intervene, it discusses the need
for the protective order. Furthermore, the appellant's motion included argument
on the intervention and the merits. In this context, it is clear that the district

court considered and rejected appellant's arguments against the order.

8

We do note an irregularity in the timing of the district court order. The order
denying the appellant's motion was filed seven days before the Magistrate
modified and finalized the protective order. The appellant argues that the
district court denied them their right to a hearing before the Magistrate to
contest the protective order. Although it might have been the better practice for
the district court to wait until the Magistrate's order was filed before denying
the appellant's motion, we believe there was no prejudice from the actions in
this case. First, we note that the district court order specifically refers to the
Magistrate's order as modified which implies that the court had a copy of the
order before it was filed. In addition, the appellants briefed the merits before
the district court and Barnett Bank raised the same objections before the
Magistrate.

Finally, we do not agree with the appellant that our cases entitle an intervenor
to a hearing to contest the issuance of a protective order. Indeed even in cases in
which a right of access to courts is at stake, our cases only require that "the
issue ... be squarely confronted and those with various interests ... be given the
opportunity to be heard." Newman v. Graddick, 696 F.2d at 802. As discussed
above, this case does not involve a right of access to courts. In re Alexander
Grant Litigation only requires the district court to articulate the reasons for
granting a protective order sufficient for appellate review. In this case, the
district court order stated that " '[t]he fear of adverse publicity, intimidation or
other outside forces that could interfere with the free flow of information, most
of which would not be admissible during the actual litigation stages of [the]
case' is adequate justification for the entry of the Confidentiality Order in its
present form as modified by Magistrate Wilson." (quoting In re Alexander
Grant Litigation, 820 F.2d at 355-56). We believe this statement is sufficient for
appellate review in this case.

10

Our review is limited to whether the issuance of the protective order is an abuse
of discretion. In re Alexander Grant Litigation, 820 F.2d at 357. In that case,
this court upheld a similar protective order. This court held:

11 complex litigation where document-by-document review of discovery materials

in
would be unpracticable, and when the parties consent to an umbrella order
restricting access to sensitive information in order to encourage maximum
participation in the discovery process, conserve judicial resources and prevent the
abuses of annoyance, oppression and embarrassment, a district court may find good
cause and issue a protective order pursuant to Rule 26(c).

12

820 F.2d at 357.

13

The appellant argues that this case is distinguishable from In re Alexander

Grant Litigation because it does not involve complex litigation with thousands
of documents and that the order is broader than in that case. The first argument
is meritless since this case involves allegations of violations of federal security
laws and RICO and discovery has delved into the financial affairs of 139
plaintiffs. As to the second point, it is true that the protective order is broader
than in In re Alexander Grant Litigation. Although the procedure whereby the
producing party designates the document confidential and the court is only
involved if a party objects was specifically upheld in that case,4 the protective
order in this case adds a further twist by requiring all depositions to be deemed
confidential for fifteen days. Appellant argues that there is no "good cause" for
such a "gag" order. We find otherwise since the Magistrate explained that the
fifteen days were required to allow the parties to determine whether to classify
the deposition, or portions of it, as confidential. Although this portion of the
order is broader than the order in In re Alexander Grant Litigation, in light of
the Magistrate's explanation, we do not believe it overly broad.

14

We therefore find that the district court did not abuse its discretion in entering
the protective order. The district court order is AFFIRMED.

The Magistrate modified the order so that it did not prevent dissemination of
confidential material obtained through sources other than discovery

The final protective order was entered by the Magistrate on July 22, 1988. The
district court order from which this appeal is taken is dated July 15, 1988 but it
refers to the "Confidentiality Order as modified by Magistrate Wilson."

Rule 26(c) states in part:

upon motion by a party or by the person from whom discovery is sought, and
for good cause shown, the court ... may make any order which justice requires
to protect a party or person from annoyance, embarrassment, oppression ... (7)
that a trade secret or other confidential research, development or commercial
information not be disclosed or be disclosed only in a designated way....

Such an umbrella protective order has been upheld by other courts as well. See
In re Alexander Grant Litigation, 820 F.2d at 356 (collecting cases)